The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-01-18
Judge Ayres Rules in Favor of the Demo-
cratic Usurper On all Points.
An Order Issued by the Court Temporarily
Restraining Col. Robertson from Perform
ing the Duties of Lieutenant-Governor.
The Defendant Promptly Files Excep-
tionsand Appeals from the Decision.
The Supreme Court Immediately Called To-
gether to Hear Argument To-Day, and
Ruling Expected Tomorrow Forenoon.

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A large attendance, larger than has at any
time been present in the Civil Circuit Court
room since Judge Alex. C. Ayres has bad in
hearing the motion of Green Smith for an in
junction to restrain Robert S. Robertson Lieu
enant-governor, from performing any of the
duties of the Office to which he was elected last
November, gathered in that courtroom yester-
day morning at O'Clock to hear Judge Ayres's
decision. The assemblage was largely composed
of lawyers and politicians, quite number OF
members of the Senate and House being pres
emit The Republicans, conscious of good
cause. were confident Of decision in favor of
Colonel Robertson; the Democrats, perhaps
from a more tangible trust were more than con-
fdent. They were iubilant, decorously subdu-
ing their feelings, though the flush Of triumph
was in their cheeks and the glitter of victory in
their eyes. Judge Ayres had hardly read TWEEN
ty lines Of his decision. which was carefully
written, before the lawy er-instinct Of the coun-
sci for Colonel Robertson saw the conclusion
toward which the Judge Fastening, but
they sat the reading of the decision through.
The whole opinion was made to hang on Judge
Turpie's argument that there had not been
valid election, though this reason did not OBJ
trude in the decision until he was nearing the
concluding pages of his manuscript The de-
cison s as follows:
This is proceeding by information. in the nature
of quo warranto with application for TEN porary
Injunction rendente lite have not had the time to
examine with the care that would have liked the
many important and novel. and as to some OF them,
doubtful. questions involved and so thoroughly ar
gued by the counsel upon either side but have
ieayOPel q examine then, with a much
possible in the short time that has elapsed since the
questions submitted and have hastily prepared
therefor.
The questions that arise in this case those
that necessarily come up in determining whether a
temporary junction should be granted. Tho defend
ant raises first the question of jurisdiction. vt IS
contsnded that this action must be brought in the
county whore the defendant resides ard cannot be
brought in this county. ruled against the defendant
upon the first argument of that question. Since that
the counsel for the defendant have re argued the
question and cited numerous authorities. which
have examined and, although the question is not
free from doubt l still tnk that the action may
riishtfully be brought in this county, where
the alleged. usurpation or attempted usurpa-
ton of the franchise or Office occurs.
The statute provides that the information may be
filed by the prosecuting attorney in the Circuit Court
of the proper county. upon his own relation. when
ever he shall deem it his duty to do or shall be d.
rected by the court other competent authority or
by any other person his relation whenever he
claims interest i'll the Office, franchise, corpora
ton which is the subject of the information. 1t
to that 1t meant tQo statute that the
prosec uting attorney in the discharge Of his duties
to the public should take notice of usurpation of
| office any unlawful holding exercising of the
duties thereof. in the county counties in
which he is prosecutor. I do not think that the
expected to take notice of usurpatons
of Office in counties other than those in whica he is
| prosecutor. For example. il some person whose
place Of residence was in Allen county should ntrude
himself into OF the county Offices of
Marion county, would it be expected that the prose
cutor of Allen rather than the prosecutor of Marion
county, should take notice of such usurpation2
think rot. think the county where the franchise
Office is being usurpe Is the proper and shall
therefore adhere to my ruling on that ques ion.
1t is further eontended that the Constitution pro
vGes that all contested elections fer Governor and
Lieutenant governor shall be deerm ned by the Gen
oral Assembly in such manner az may be prescribed
by law, that therefore, court has jurisdiction
to determine whether or not ACKNOWLEDGEMENTS
| has been legally elected. AS the Constitution is not
sef-executing the General Assembly try or deter
mine confessed elections only in the pre-
scribed by law, and only in the aud in the par
ticuar kind of proceeding that prescribed by law
and only for the mentioned and specified IL
that particular proceeding Section 4756 of thu
Statutes provides the causes for which election
may be contested ~ Irregularity maconduct
90 inegibiity of the contestee 81 infamous Grim,
| in the cortestee; al illegal votes.
There is no provision whatever for trying such /
question Is presented here; namely. whether th'
election held at time when it might lawfully b.
held. Ii the courts therefore have 10 authority
determine whether the election in controvers,
could legally have been held there is way what
ever to determine it. think it does not follow tina
and determine contested elections that therefore, tn
courts have authority to determine the title to
other than contested election. But this pro
ceeding is not a contest OF election
| think. such as is provided for
While every contested election involves the title to
office it does notfoilow that every proceeding TO dc
ter mine the title to Office is contested election
This proceeding is not contest between two person
to determine which of them elected, where al
election held, but is TO determine whetke
there any election at such time is recognize
and provided for by law. I do not think. therefore
that this is a contested election which the Genera
Assembly has tho exclusive jurisdiction to try. But
90 think that the question presented is one of Law
which the courts have the right TO decide.
| 1t is contended that tho defendant is entitled t
have this proceeding for injunction continued b,
the statute provides that where either party is
member of the Genera, Assembly Lieutenant GOV
ernor. that on the application of either party, til
case should be continued until the expiration of TIA
session OF the General Assembly But this is az
| plcation for temporary injunction to protect tn
rights of the parties pending iitgation-to presery
the status quoand think, therefore, that if pror,e
showing is made for temporary Injunction thi
statute could have application.
The question then presented is whether the tempo
rary injunction should be granted. And we no'
to the merits of this controversy. The allegations
The complaint information to the question Of til
ALLEGED lsurpation the part of the defendant ar
somewhat contradictory and it is difficult tell fror
the allegations the extent to which the defendant ha
| entered into exercises some of the functions an
the duties of the Office of Lieutenant-governol
II charges in substance, that the relator dull
elected President of the Senate and is in possession
the franchise of presiding the Senate and is.
fact presiding it, and still retains the possessio
of the Office of President of the Senate but claim
that the defendant has unlawfully intruded hirns
into the Office of Lieutenant governor and uslrpe
of his rights the President of the Senate
is threatening TO- and will unless enjoined, in,rud
himself into and usurp the rights and duties of tia
| office.
The defendant admits by his affidavit that he wa
declared elected TO the Office of Lieutenant governo
by fhe Speaker in the presence of the House Of Rel
rcsentatives and nineteen Senator's: and that he d.
preside over that body JON convention pre-
poses to again preside the joint convention whe
IL meets for the purpose of exciting United State
senator; but denies that he intends any fore
unlawful means to obtain thepossesson of preslin
officer Of the Senate, for the purpose Of pre-
| siding over said joint convention.
As look ut il. therefore. it is necessary to pas
upon the main question, alleged in the complaint
and which has been fully and ably argued by bot
sides to determine whether according the alloys
tons of the COMPLAINT there is any usurpator
-.